(a) Criteria for determining the ground connecting passage as “the occupation and use of a road” as stipulated in Article 40 of the Road Act;

(b) The case reversing the judgment of the court below on the ground that there was an error in the rules of evidence or incomplete hearing in the misapprehension of the rules of evidence, as long as the plaintiff occupies and uses roads with underground connecting passages between the 2 subway stations and the building owned by the plaintiff;

A. The main purpose and function of the underground connecting passage is to use it for the passage of the people who enter a specific building, but it does not restrict the passage of the general public. If ordinary citizens merely use it, it is more inconvenience than the original use of road, the underground connecting passage is provided for special use for the convenience of use of a specific building, and thus its installation and use should be deemed occupancy and use of road. However, if the use and function of the underground connecting passage is mainly for the convenience of traffic of the general public and it is used for the passage of the people who enter a specific building, it cannot be deemed that the underground connecting passage is for the general use of road and it is difficult to view it as for the special use of the owner of the building.

B. The case reversing the judgment of the court below on the ground that there was an error in violation of the rules of evidence or incomplete hearing in the misapprehension of the rules of evidence, as long as the plaintiff occupies and uses roads with underground connecting passages between the 2-line subway stations in Seoul subway stations and the 19-year new house

Articles 80-2 and 40 of the Road Act

A. Supreme Court Decision 90Nu5221 delivered on November 27, 1990 (Gong1991, 247) 90Nu8855 delivered on April 9, 1991 (Gong1991, 1387) 91Nu8173 delivered on September 8, 1992 (Gong1922,2892)

Commercial Securities Co., Ltd., Counsel for the defendant-appellant in charge of the law office in the Pacific Partnership Law Office and one other

Attorney Jung-gu, Seoul Metropolitan Government

Seoul High Court Decision 89Gu5913 delivered on May 24, 1990

Supreme Court Decision 90Nu5221 Delivered on November 27, 1990

Seoul High Court Decision 90Gu23559 delivered on December 12, 1991

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

We examine the grounds of appeal by the Plaintiff’s attorney.

1. On March 5, 1984, the lower court determined that the Plaintiff’s act of using the above section for the purpose of maintaining and using the above section of the connecting passage to the 198 square meters for the purpose of maintaining and using the above section of the connecting passage to the 198 square meters, and that the Plaintiff’s act of installing and using the above section of the connecting passage to the 198 square meters for the purpose of maintaining and using the above section of the connecting passage to the 198 square meters for the purpose of maintaining and using the above section of the underground connecting passage to the 198 square meters for the purpose of maintaining and using the above section of the connecting passage to the 198 square meters for the purpose of maintaining and using the above section of the connecting passage to the 1st of the 1st of the 1st of the 1st of the 2nd of the 1st of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 2nd of the 1st of the 2nd of the 2nd of the 3th of the 4th of the road.

2. The court below's decision that "the occupation and use of a road" as stipulated in Article 40 of the Road Act means the so-called special use of a specific part of a road for a specific purpose, in addition to such general use, with respect to a road for public use by the general public. It is reasonable in accordance with the judgment of remanding the case where the special use of a road is not necessarily exclusive or exclusive, but it is possible to exist concurrently with the general use of the road according to its purpose. In such a case, the road occupation and use part at the same time cannot be deemed to be an occupation and use of the road. Thus, the main use of the above underground connecting road and its function are for use as the passage of the person who enters the building owned by the plaintiff. However, it is difficult to limit the passage of the general public. Thus, the above underground connecting passage cannot be viewed as the use of the road because it is merely a special use for the use of the plaintiff's building rather than for the general use, and it cannot be viewed as the use of the road as the use of the road.

However, the circumstances acknowledged by the court below alone cannot be readily concluded that the above underground connecting passage was installed for convenience in the use of the building, such as convenience in access to the building owned by the plaintiff, or that the main purpose and function of the above underground connecting passage is to use for the passage of the people who access the building owned by the plaintiff. Rather, according to each of Gap evidence 1-1, 2, and evidence 2-1, and 2-2, the court below also adopted as evidence, prior to filing an application for permission to occupy and use the road for the installation of the above underground connecting passage, it can be seen that the Mayor of Seoul Special Metropolitan City attached the right to install the underground connecting passage in conformity with the urban design when granting the building permission for the above building owned by the plaintiff to the defendant. Thus, it is doubtful that the above underground connecting passage was installed for convenience of the city and landscape within the zone of the downtown, and it is difficult to view that the above underground connecting passage was installed for convenience of the above general passage of the plaintiff's entrance and use of the above underground passage to the above underground passage.

The lower court should carefully examine the details and purpose of the above underground connecting passage, the location, structure, use, form, and size of the Plaintiff-owned building connected to the above underground connecting passage and its entrance, traffic conditions, such as roads around the above underground connecting passage, and the ratio of persons having access to the Plaintiff’s building and general traffic users among those who actually use the above underground connecting passage, etc. The lower court should have determined whether the main use and function of the above underground connecting passage is for the benefit of the Plaintiff-owned building.

Nevertheless, the court below determined that the plaintiff is occupying and using a road where the above underground connecting passage was installed, with only the facts acknowledged as above, because it was erroneous in the judgment of the court below which reversed the judgment of the court below which reversed the judgment of the court of appeal which rejected the plaintiff's claim seeking the cancellation of the disposition of this case. Thus, the court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on occupation and use of the road, which affected the conclusion of the judgment, and it is obvious that the above error was affected by the judgment. Thus, there is a reason to point this out.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.